By Nitin Lasta
Law does not reside in vacuum. Its roots are there in the society. It is an established presumption that only change is constant and the society is not an exception to it. Law changes as the opinions, desires, interest and requirements of the people changes. Modern civilized States remain at its toes to protect and promote democracy, rule of law and human rights. Sir Ivor Jennings writes: “The fundamental principle of democracy is that government shall be carried on for the benefit of the governed.” The object of most Constitutions is to set up machinery by which the wishes of the governed may determine the nature of the government.
In India from the beginning of the society King was under the mandate of Dharma to protect its subject. It was one of the fundamental duties of the King to keep the high standards of the socio-legal justice so that he might maintain the equality among its subjects without any biasness or discrimination; later, with the introduction of the Constitution, the ‘Supreme Document’ of the land, imparts the duty, in the supervision of ‘Rule of Law’, over the State to protect and nurture the welfare of its people.
Social Justice and Rule of Law Resulting into Right to Legal Aid
No society can survive without a fair justice system. First things first if human rights are high on the nation’s agenda. Our Constitution, its preamble is the lodestar of Justice. The word ‘Socialist’ was not there originally in the Preamble. It was added to the preamble by the 42nd amendment of the Constitution in 1976. Social justice is the signature tune of our Constitution and the little man in peril of losing his liberty is the consumer of social justice.
Social justice is the comprehensive form to remove social imbalance by law harmonizing the rival claims on the interest of different groups and/or sections in the social structure or individuals by means of which alone it would be possible to build up a Welfare State. The Constitutional concern of social Justice as an elastic continuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor etc. are languishing and secure dignity of their person.
State is under Obligation to Provide Legal Aid
The legal aid is an instrument to achieve equality before law. It is a concept of administration of justice. Every ‘Welfare State’ recognizes the right to legal aid. The New Encyclopedia Britannica defines legal aid as the professional legal assistance given, either free or for a nominal sum, to indigent persons in need of such help. The International Commission of Jurists includes the provisions of legal advice and representation in the courts to all those threatened as to their life, liberty, property or reputation, who are unable to pay for it.
The object of Legal Aid is to provide legal justice to the weaker sections of the society. The slogans of democracy, rule of law and human rights have no meaning unless we first strengthen the mechanism of legal aid and advice.
Right to Legal Aid in International Law
The developed and powerful countries of the world like USA, UK, Canada and Australia have recognized the right of legal aid. They have adopted the schemes of legal aid. The Charter of the United Nations makes provisions for the better protection and promotion of human rights in the world. The dreams of the makers of the Charter of United Nations changed into reality when the General Assembly adopted the ‘Universal Declaration of Human Rights’ on December 10, 1948. The Declaration internationalized the movement of human right to legal aid. Article 8 of the Universal Declaration of Human Rights provides:
Everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted to him by the constitution or by law.
In the same spirit, Article 14(3)(d) of the International Covenant, 1966 on Civil and Political Rights states:
In the determination of any criminal charge against any person, everyone shall be entitled to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.
The Third United Nations Conference on the Prevention of Crime and Treatment of Offenders was held in 1965 at Stockholm, which realized the need for legal aid. The availability of legal aid for accused and convicted persons was discussed. There was unanimity on the need to provide legal assistance to arrested and accused persons and to those convicted of crime who may wish to appeal. This is justified not only in terms of human rights and social decency but also because the failure to provide adequate legal aid may well leave convicted persons with a sense of injustice; the lack of an adequate legal aid system thus tends to increase recidivism.
The International Conventions and Declarations have recognized the right to legal aid as a human right and fundamental freedom of the people of the United Nations. The International law provides that the legal aid should be accepted as an essential part of justice of every nation.
Right to Legal Aid in India
Every poor accused must be provided the benefit of legal aid and legal services. The right of life, liberty, equality and dignity are basic human rights of people. It should be protected by the system of administration of justice and by providing legal aid, legal service and legal justice to the people. Keeping this object in mind, the legal aid program is introduced by the legislature.
Right to Legal Aid and Constitutional Provisions
The Legal Aid program has become a strengthening pillar for the socio-legal justice. This program came into existence by virtue of Article 39-A of the Constitution and the consequent amendment of Legal Services Authorities Act, 1987. This Legal Aid Program has become an augment of the Preamble’s spirit in the name of Socialistic approach.
Article 39-A says, “The State shall secure that the operation of the legal system promotes justice on the basis of equal opportunity and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”
This nexus between social justice and Article 39-A has been confirmed in Babu Ram L. v. Raghunathji Maharaj, that social justice would include legal justice, which means that the system of administration of justice must provide a cheap, expeditious and effective instrument for realization of justice by all sections of the people irrespective of their social or economic position or their financial resources.
Article 22 of Constitution — Right of accused to be provided with lawyer by State — it is the constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the State and the State is under a constitutional mandate to provide a lawyer to such accused person if the needs of justice so require. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and every State Government should try to avoid such a possible eventuality.
Right to Legal Aid and Legal Services Authorities Act, 1987
This Act constituted legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of legal system promotes justice on a basis of equal opportunities.
Right to Legal Aid and Criminal Procedure Code
Section 304 of Criminal Procedure Code enables the Sessions Court to assign a pleader for the defence of the accused at the expense of the State provided he is unrepresented and the Court is satisfied that he has no sufficient means to engage a pleader. The selection of such pleader, the facilities to be given to him by the Court and his remuneration are to be governed by the rules that may be framed by the High Court in this regard with the previous approval of the State Government. Provision is made in sub-section (3) to extend the same facilities to any class of trials before other courts by the State Government.
Legal aid is the state’s duty and the Government’s charity. The legal service must be free to the beneficiary; the lawyer himself has to be reasonably remunerated for his services. Surely, the profession has a public commitment to the people but mere philanthropy of its members yields short mileage in the long run. Their services, especially when they are on behalf of the State must be paid for.
When an undertrial prisoner is produced before a magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail. The State Government must also provide at its own cost a lawyer to undertrial prisoner with a view to enable him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of Section 167 of Criminal Procedure Code and the Magistrate must take care to see that the right of the undertrial prisoner to the assistance of a lawyer provided at the State costs is secured to him.
Free legal services to the needy are part of the English criminal justice system. The American Jurist, Professor Vance of Yale, sounded sense for India too when he said:
What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is. Or that the Courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee.
Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because democracy’s very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness.
In the absence of legal assistance injustice may result. Every act of injustice corrodes the foundations of democracy. It is a somber reflection that many little Indians are forced into long cellular servitude for little offences because their trials never conclude. The decisions in Hussainara Khatoon and M.H. Hoskot v. State of Maharashtra making legal aid a constitutional mandate under Article 21 has paved way towards upholding human rights in criminal jurisprudence. The court has upheld the right to free legal aid to be provided to the poor accused persons, “not in the permissive sense of Article 22(1) in its wider amplitude but in the peremptory sense of Article 21 confined in prison situations”.
Article 39-A Is the Interpretative Tool for Article 21
There may, of course, be some cases involving offences, such as, economic offences or offences against the law prohibiting prostitution or child abuse and the like, where social justice may require that free legal service may not be provided by the State, but as R.V. Kelkar in his work maintained, if the right to free legal service is a constitutional fundamental right of an indigent accused person, it is not easy to understand how that right could be taken away only on the ground that the offence alleged against him is in the nature of social and economic offence.
Let it not be forgotten that if law is not only to speak justice but also deliver justice, legal aid is an absolute imperative. Legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice; it is intended to reach justice to the common man, who, as the poet sang:
Bowed by the weight of centuries he leans upon his hoe and gazes on the ground, The emptiness of ages on his face, And on his back the burden of the world.
Conclusion
India is a developing country. Major portion of our population is surviving below the poverty line. It is a universal fact that backwardness of education always leads to socio-economic backwardness. We cannot stress enough the importance of education — it is perhaps the single-most empowering tool in any aspect of life for every person and law is no exception. In India the literacy rate is very poor and legal literacy is in more miserable condition. People are not aware about their legal, constitutional and fundamental rights.
Legal aid program is one of the constitutional fundamental rights as it has been observed in various decided cases. It is a question of paramount consideration that how many people in India are aware about this right. In Sukdas case the court paid heed to the question whether this fundamental right could be denied lawfully to an accused person if he does not apply for free legal aid. The Supreme Court held that the bulk of the Indian people living in rural areas are illiterate and are not aware of their rights. Even literate people do not know what their rights are under the law. In these circumstances it would make a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal service. “Legal aid would be an idle formality if it was to depend upon a specific application by such poor or ignorant person for such legal assistance”.
No doubt constitutional or statutory provisions impose duty over the court to disclose this right before the indigent accused. It is the second phase of enjoyment of this right. In first phase if the alleged accused is not acquainted with this right consequently he has already engaged his counsel and furnished his fees by any means like borrowing from some moneylender or from some next friend, would the court be so generous to reimburse that indigent or needy person after establishing his indigence.
As the phrase ‘Right to legal aid’ talks about aid which means help; that help may be in the form of advice or may be financial assistance. Now-a-days in every sector we talk about public private partnership, then why this legal aid program should remain as a duty imposed only on the Government or the Courts. The philanthropic organizations, N.G.O.’s and the other respectable members of the society should come forward to shoulder this responsibility. As a charitable organization has offered the financial help to the jail authorities on behalf of inmates who, despite completing their sentence, are languishing in jail due to non-payment of fine imposed over them because of poverty. It may be a daunting task to trace that the beneficiary of this aid is actually needy or not, but to achieve the larger interest we have to take every step with full care and caution.
Realism is a component of humanism which is the heart of the legal system. The credibility of the court is of great value. There is a direct proportionate relationship between the faith the people have in an institution and the success of that institution. The access to justice, the faith in fundamental rights and social justice and the maintenance of the rule of law turn on social integrity, secularity, competency, socialist mentality and freedom from class, communal, sex and other plural inclinations. Access to justice, basic to the implementation of every human right, makes the judicial role pivotal to constitutional functionalism. To command people’s confidence is the need of the hour. The petty done and the undone vast is the ground reality.